Lampson v. Lampson

159 N.Y.S. 368 | N.Y. App. Div. | 1916

Per Curiam:

This is an action for divorce. The defendant has not appeared. The issues were tried before the court. The plaintiff charged defendant with having committed adultery with a woman whose name was unknown to her, at a specified time and place. The trial court refused to find the commission of adultery, and found that if committed it was committed with the consent, connivance, procurement and privity of the plaintiff. The plaintiff testified that the acts of which she complained were not committed with her consent, connivance, procurement or privity, and that she did not cohabit with the defendant after the discovery thereof. Her testimony is consistent, is in no manner impeached, and is uncontroverted. It should, therefore, have been accepted. We have examined the other evidence and are of opinion that the court should have found the commission of adultery as charged. It follows that the 4th and 5th findings should be reversed, and findings in accordance with these views substituted therefor, and that the conclusions of law should be reversed, and in place thereof conclusions of law authorizing the entry of an interlocutory judgment of divorce in the usual form, together with costs, and that the judgment should be reversed and an interlocutory judgment granted in accordance with the decision as amended. Present —Clarke, P. J., Laughlin, Scott, Smith and Davis, JJ. Judgment reversed and interloetory judgment granted in accordance with decision as amended. Order to be settled on notice.